The South African Bill of Rights - public, private or both: a viewpoint on its sphere of application

With the dawn of a new era in South Africa, and the commencement of the new constitution, principles previously foreign to the South African legal system have emerged. These are inter alia the supremacy of the constitution, as opposed to the parliamentary supremacy of the past, and enforceable human rights. The fundamental questions surrounding the content of human rights standards and the role of the state in the exercise of such rights, should be considered in interpreting the constitution. This includes the question as to the sphere of application of the constitutionally enshrined rights, as this will determine the level of protection ensured to the individual via the constitution. Human rights may be defined as a constitutional and international law concept, aimed at defending, in an institutionalised way, the rights of persons, natural and juristic, against excesses of power committed by state organs. 'Constitutional' human rights (that is human rights entrenched in a constitution) should be distinguished from 'non-constitutional' human rights (that is human rights in a private sphere by way of civil rights Act or code). This article deals with 'constitutional' human rights.